Appellate Division: Second Judicial Department

M63503

E/sl

WILLIAM F. MASTRO, J.P.

STEVEN W. FISHER

EDWARD D. CARNI

WILLIAM E. McCARTHY, JJ.

2007-09693, 2007-10263 Alan Chernow, respondent, v Herman Chernow, appellant. (Index No. 14396/07)

DECISION & ORDER ON MOTION

Motion by the appellant for a preference in the calendaring of appeals from two orders of the Supreme Court, Kings County, dated September 24, 2007, and October 15, 2007, respectively. Cross motion by the respondent to strike pages 13 and 39 through 44 of the appellant's appendix and the second full paragraph on page 2 of the appellant's brief on the grounds that they contain or refer to matter dehors the record, for leave to file an appendix, and to enlarge the time to serve and file a brief.

Upon the papers filed in support of the motion and the cross motion, and the papers filed in opposition thereto, it is

ORDERED that the matter is remitted to the Supreme Court, Kings County, to report on the issue of whether it considered the letter of Robert Gutman dated April 20, 2007, and the undated "Petitioner's Memo of Law in Support of Motion to Dismiss & Summary Judgment" of Henry O'Brien, in determining the motions that resulted in the orders which are the subject of the appeals, and the motion for a preference and cross motion, inter alia, to strike the appellant's appendix and brief are held in abeyance in the interim. The Supreme Court shall file its report with all convenient speed.

MASTRO, J.P., FISHER, CARNI and McCARTHY, JJ., concur.

ENTER:

James Edward Pelzer

Clerk of the Court